https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11218

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **FAMILY DIVISION** **MILIMANI LAW COURTS** **HCFOS NO. 10A OF 2008** **MARY WANGARI MWANGI ……………….……………… APPLICANT** **VERSUS** **GEORGE KANIARU THANDE .. ………..………….…… RESPONDENT** **JUDGMENT** 1. Before this Court is the Originating Summons dated 14th October 2000 brought under the Married Women’s Property Act of 1882 (now repealed) seeking *inter alia;* * 1. ***THAT it be declared that the property known as LR NO. DAGORETTI/UTHIRU/T338 acquired by the joint funds and efforts of the Applicant and the Respondent during their marriage and registered as specifically shown in the annexed affidavit of the Application is owned by the Applicant and the Respondent;*** 2. ***THAT the said property be equally shared between the Applicant and the Respondent, or in the alternative be sold and the net proceeds of the sale be shared equally between the Applicant and the Respondent.*** 3. ***THAT the Respondent George Kaniaru Thande and/or his agents, servants be restrained from alienating, the encumbering or in any manner disposing of the said property in a manner prejudicial to the Applicant’s interests.*** 2. The Originating Summons is supported by the affidavit of the Applicant sworn on even date and a further affidavit sworn on 3rd February, 2009 as well as the Supplementary List of Documents dated 13th July, 2025. 3. The Originating Summons is opposed via a Replying Affidavit sworn by the Respondent on 10th May, 2001. **Background:** 1. The Applicant testified that she and the Respondent entered into a traditional marriage in 1980 and subsequently cohabited as husband and wife until 3rd April, 1991 when they registered the same as a civil marriage and a Marriage Certificate was issued under the **Marriage Act, Cap 150** (now repealed). They had two children during their marriage, born in 1981 and 1983. 2. The Applicant avers that they were jointly gifted the suit property **LR NO**. **DAGORETTI/UTHIRU/T338** by the Respondent’s grandfather following their traditional marriage in 1980 to put up their matrimonial home. 3. The Applicant avers that when they moved to the suit property, the same was a vacant plot that had not been developed and only consisted of a simple structure. She stated that they opened a joint account, into which she deposited her salary, which was substantially used to construct and develop their matrimonial home. She further states that she has been in full control of the property and that she has constructed rental units on it. 4. Vide the Replying Affidavit dated 10th May 2001, the Respondent contends that the land in question was gifted by his grandfather on 30th March, 1984 before he married the Applicant. He averred that he developed the plot with the assistance of his grandfather, who provided the materials and financed the entire construction. The Respondent avers that the parcel of land in question was not bought but given as a gift on the condition that it would not be sold. 5. The evidence on record is that the Respondent relocated to Seychelles on or about 1994 and was later joined by the Applicant and their two children. While in Seychelles, their marriage irretrievably broke down, and the Applicant petitioned for and was granted a divorce on 24th March, 1997. The dissolution of the marriage led the Applicant to commence proceedings for the division of matrimonial property. 6. In seeking the said orders, the Applicant claims that the property was registered solely in the Respondent’s name, as was the custom at the time, despite it having been gifted to both of them, and that it was later developed through the joint efforts of the Applicant and the Respondent. **Issues for determination:** 1. I consider the following to be the salient issues of determination; 2. ***Whether the property* LR NO**. **DAGORET*TI/UTHIRU/T338 is matrimonial property;*** 3. ***Whether the Applicant is entitled to a share of the property and, if so, to what extent***. 4. While noting that the Originating Summons has been brought under the ambit of a repealed law, I am cognizant of the development of family law being the enactment of **Article 45 (1)** and **(3)** of the Constitution as well as the provisions of the **Matrimonial Property Act**, despite the suit having been filed before the two came into effect. 5. The language of **Article 45 (3)** of the Constitution does not connote that it may not be applied retrospectively. The language plainly provides for the right to equality to all parties of a marriage during the subsistence of such a marriage, as well as at the dissolution of such a marriage. 6. It is not in dispute that the suit property, **LR No. DAGORETTI/UTHIRU/T338** was a gift from the Respondent’s grandfather. Consequently, the issue of financial contribution towards the purchase or acquisition of the property does not arise. 7. The Applicant’s evidence of a traditional marriage in 1980 is unchallenged. The evidence that the children of the marriage were born in 1981 and 1983 also gives credibility to this. 8. The Applicant contends that the property was gifted before the civil marriage was registered in 1991. Indeed, the transfer form shows that it was executed in 1984. There is evidence, though, of cohabitation as husband and wife between 1980, following the traditional marriage and 1991, when the civil marriage was registered. The evidence also shows that this property was occupied by the parties as their matrimonial home. I therefore find that the property is matrimonial property. 9. In [**PETER MBURU ECHARIA v PRISCILLA NJERI ECHARIA [2007] KECA 504 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2007/504/eng%402007-02-02), the Court of Appeal held that where the property in dispute is registered in the name of one spouse, the beneficial interest of each spouse would depend on the financial contribution by each spouse, either directly or indirectly. The Court held: ***“Where the disputed property is not so registered in the joint names of the spouses but is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective proportions of financial contribution either direct or indirect towards the acquisition of the property. However, in cases where each spouse has made a substantial but unascertainable contribution, it may be equitable to apply the maxim “Equality is equity” while heeding the caution by Lord Pearson in Gissing vs. Gissing (supra) at page 788 paragraph c that:*** ***“No doubt it is reasonable to apply the maxim in a case where there has been very substantial contributions (otherwise than by way of advancement) by one spouse to the purchase of property in the name of the other spouse but the portion borne by the contributions to the total purchase price or cost is difficcult to fix. But if it is plain, that the contributing spouse has contributed about one-quarter, I do not think it is helpful or right for the court to feel obliged to award either one-half or nothing.”*** 1. In this case and in that context, I consider whether the Applicant has provided evidence of contribution to the development and improvement of the matrimonial property. 2. It is not in dispute that from the time the parties began cohabiting until their marriage, the Applicant was in formal employment and drawing a salary, which she claims was deposited into the joint account. 3. While the Applicant asserts that she held this joint account with the Respondent into which her salary was deposited for the construction and development of the matrimonial home, no evidence was adduced to support this assertion. 4. She also contended that she has solely financed the construction of rental units on the property, but again, there is no proof to support the assertion. 5. I find that the Applicant has not proved her case on the claim that she made a direct financial contribution to the development of the property on **LR No. DAGORETTI/UTHIRU/T338.** 6. Equity denotes that a party, though not having contributed monetary resources to the acquisition or development of matrimonial property, may nonetheless, in one way or another, through their actions or deeds, have created an environment that enabled the other party to acquire/improve the property with greater resources and/or have contributed to the improvement of the property in any other way. This amounts to an indirect contribution. 7. In this case, there is substantial evidence indicating that the Applicant provided companionship to the Respondent for over 15 years and also played a significant role in caring for the children. There is proof that the Applicant assumed sole responsibility for the property following the Respondent’s relocation in 1993, prior to her and the children’s later move to Seychelles. 8. Further, a consent dated 6th March, 2014 executed by both parties, clearly delineates that the Applicant possesses exclusive control over the property, which includes an authorization to sell half of the property. The consent substantiates the claim that the Applicant has been actively managing the property and ensuring its preservation. Supporting evidence, including photographic documentation, confirms that the property has been maintained in good condition while under the Applicant’s exclusive control. 9. I associate myself with the decision of the Court in the case of ***PWK Vs. JKG [2015] eKLR, where the court said:*** ***“Where the disputed property is not so registered in the joint names of the spouses but is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective proportion of financial contribution either direct or indirect towards the acquisition of the property. However, in cases where each spouse has made a substantial but unascertainable contribution, it may be equitable to apply the maxim equality in equity while needing the caution of Lord Pearson in Gissing Vs. Gissing [1970] 2 ALL ER. 780 Pg 788.”*** 1. I find that the Applicant made an indirect contribution towards the family’s welfare and to the preservation and improvement of the property, and as such, she should benefit from the property. 2. I further find that the Applicant’s indirect contribution is substantial, and therefore order that the property be divided equally between the Applicant and the Respondent. 3. In the circumstances, the Court holds as follows, 4. ***The property on LR NO. DAGORETTI/UTHIRU/T338 is matrimonial property and is subject to division;*** 5. ***The above property shall be shared out in the ratio of 50:50 between the Applicant and the Respondent;*** 6. ***In the event of any disagreement, the same shall be sold by way of public auction, and the proceeds, less liabilities, shall be shared in the ratio directed;*** 7. ***Each party shall meet own costs.*** 8. It is so ordered. **DATED, DELIVERED** and **SIGNED** at **NAIROBI** on this **14TH** day of **JULY, 2026.** **……………………….** **C. KENDAGOR** **JUDGE** **In the presence of:** Court Assistant: Beryl Ms. Kimani Advocate holding brief for Mr. Njenga Advocate for the Applicant No attendance for the Respondent